8.5 - A. Scope Of The Suppression Hearing

• Jurisdiction: New York

A. Scope of the Suppression Hearing

The purview of the hearing (that is, the number and types of witnesses the prosecutor is required to present and the latitude defense counsel will be given to cross-examine them) depends to a large extent on the grounds forming the basis of the defendant’s motion to suppress. Thus, in order to obtain the most expansive hearing, allowing counsel the broadest scope to delve into as many aspects of the case as possible, it is vital to raise every legitimate issue that could allow for suppression of the evidence.¹⁴⁴³

For example, where warranted by the facts, a motion to suppress evidence obtained post-arrest should always include a demand for a Dunaway¹⁴⁴⁴ hearing. Such a motion should allege, with supporting factual bases,¹⁴⁴⁵ that the evidence constitutes “fruit of the poisonous tree,”¹⁴⁴⁶ having been obtained as the result of an illegal arrest, based on less than probable cause.¹⁴⁴⁷ This ground may be alleged whether the evidence consists of a statement by the defendant to the police, an identification procedure or tangible property obtained as the result of a search and seizure.¹⁴⁴⁸

Failure to include such a ground could well result in the court severely limiting the hearing solely to the post-arrest procedure in question (e.g., the police questioning or the lineup). In that case, the prosecutor would not automatically be required to call the arresting officer or to present any evidence regarding the defendant’s initial detention. As a result, counsel would be denied the opportunity to discover and challenge the basis for arrest. Similarly, where a defendant has been arrested pursuant to a warrant, the facts may give rise to a challenge to the arrest based upon the propriety of the warrant’s issuance or its execution.¹⁴⁴⁹

In the same vein, where the evidence consists of statements to law enforcement officers, the defense should raise not only illegal arrest “fruits”¹⁴⁵⁰ and illegal search and seizure “fruits,”¹⁴⁵¹ but also other grounds for suppression (e.g., failure to give Miranda warnings,¹⁴⁵² “false promise”¹⁴⁵³ and right-to-counsel claims under the Blake-Settles-Samuels-Skinner¹⁴⁵⁴ and the Hobson-Donovan-Arthur¹⁴⁵⁵ lines of cases), where applicable. In a motion to suppress identification procedures, grounds include suggestiveness,¹⁴⁵⁶ “fruit” of unlawful arrest¹⁴⁵⁷ and right to counsel.¹⁴⁵⁸ Where the evidence consists of tangible property, the facts may give rise to a claim that the level of the officer’s knowledge was not sufficient to justify the degree of the officer’s intrusion. Other avenues of attack include a motion to controvert a search warrant as not based on probable cause, as well as improper execution of the warrant.¹⁴⁵⁹

A police officer’s subjective intent is irrelevant.¹⁴⁶⁰

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Notes:

^[1443] . See Chap. 7, “Motion Practice.”

^[1444] . Dunaway v. N.Y., 442 U.S. 200 (1979).

^[1445] . See People v. Lee, 130 A.D.2d 400, 515 N.Y.S.2d 260 (1st Dep’t 1987); People v. Carrasquillo, 70 A.D.2d 842, 418 N.Y.S.2d 3 (1st Dep’t 1979); People v. Estrada, 147 A.D.2d 407, 538 N.Y.S.2d 5 (1st Dep’t 1989).

^[1446] . Wong Sun v. United States, 371 U.S. 471 (1963).

^[1447] . See, e.g., People v. Gethers, 86 N.Y.2d 159, 630 N.Y.S.2d 281 (1995) (because People failed to prove that police seizure of defendant was supported by probable cause, ensuing identification and recovery of tangible evidence should have been suppressed).

^[1448] . Dunaway, 442 U.S. 200; see also People v. Cantor, 36 N.Y.2d 106, 365 N.Y.S.2d 509 (1975); People v. Hicks, 68 N.Y.2d 234, 239, 508 N.Y.S.2d 163 (1986); People v. Stith, 69 N.Y.2d 313, 318, 514 N.Y.S.2d 201 (1987); People v. Parris, 136 A.D.2d 882, 525 N.Y.S.2d 445 (4th Dep’t 1988).

^[1449] . See Payton v. N.Y., 445 U.S. 573 (1980); Steagald...